This is part three in an eight part series adapted from a speech delivered on April 29, 2003, at a Hillsdale College National Leadership Seminar in Dearborn, Michigan. Reprinted by permission from Imprimis, the national speech digest of Hillsdale College. [Part II is here]
Myth or Misconception 3: The national government and the state governments are regulated similarly by the Constitution.
As the 10th Amendment makes clear, the starting point for any constitutional analysis is that the national, i.e., the federal, government can do nothing under the Constitution unless it is affirmatively authorized by some provision of the Constitution. The states, on the other hand, can do anything under the Constitution unless they are prohibited by some provision of the Constitution. Why then, one might ask, throughout the 19th century and well into the 20th century—before the Bill of Rights was thought to apply to the states—did Michigan and other states not generally infringe upon such indispensable freedoms as the freedoms of speech or religion? How were individual rights protected? Well, in two ways principally: First and most obviously, there was simply not majority sentiment on the part of the people of Michigan or other states to encroach upon such freedoms. Second, Michigan and all other states had their own Constitutions that protected such freedoms.
Today the Bill of Rights has been construed by the U.S. Supreme Court to apply to the states, creating more uniform and more centralized constitutional policy. It remains true, however, that the impact of the Constitution upon the national and state governments varies substantially.
As the 10th Amendment makes clear, the starting point for any constitutional analysis is that the national, i.e., the federal, government can do nothing under the Constitution unless it is affirmatively authorized by some provision of the Constitution. The states, on the other hand, can do anything under the Constitution unless they are prohibited by some provision of the Constitution. Why then, one might ask, throughout the 19th century and well into the 20th century—before the Bill of Rights was thought to apply to the states—did Michigan and other states not generally infringe upon such indispensable freedoms as the freedoms of speech or religion? How were individual rights protected? Well, in two ways principally: First and most obviously, there was simply not majority sentiment on the part of the people of Michigan or other states to encroach upon such freedoms. Second, Michigan and all other states had their own Constitutions that protected such freedoms.
Today the Bill of Rights has been construed by the U.S. Supreme Court to apply to the states, creating more uniform and more centralized constitutional policy. It remains true, however, that the impact of the Constitution upon the national and state governments varies substantially.
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